Chapter
1:
General Principles for ESC Rights Activism

The
Emergence of a Rights Approach

Why is economic,
social and cultural rights activism a relatively undeveloped phenomenon?
Why are so many organizations only now turning their attention to the
possibility of utilizing a rights approach to addressing long-standing
problems of poverty, starvation and malnutrition, homeless- ness, forced
evictions, and other ills?

Generally,
two broad factors have contributed to the growing interest and capacities
of NGOs and activists to address economic and social issues using a
rights approach. One is the maturation of the human rights movement.
Many local, national, regional and international human rights organizations
have emerged around the world. Through years of focused activism, these
organizations have gained invaluable experience in analyzing and understanding
international standards and mechanisms (primarily in the civil and political
rights field) and utilizing a range of advocacy tools in their advancement
of a human rights approach to societal issues.

The second
important ingredient was the convergence of widespread poverty and increasing
inequality with the end of the Cold War. Following the end of dictatorships
in a number of Latin American countries, the freeing of most political
prisoners in Eastern Europe, and the end of apartheid in South Africa,
deteriorating economic and social problems began to claim the attention
of activists in these regions and globally. Roots of the present deterioration
in economic and social conditions can be found in the late 1970's, when
Third World countries faced growing foreign debt. Structural adjustment
policies (SAPs) and conditions to promote the development of "free market
economies", imposed by international financial institutions and lending
countries, gained ground with the end of the Cold War and the disappearance
of the East-West ideological debate.

Along with
the easing of the latter tensions, many human rights organizations felt
freer to explore ESC rights concerns arising out of endemic poverty
and inequality exacerbated by the mentioned policies. Many activists
had accumulated experience and tools that better enabled them to begin
to address economic and social problems as rights issues.

What
Has Motivated Some Groups to Use a Rights Approach?

Venezuela is an oil-rich
country. For many years, due to increased national wealth created
by oil revenue, the government expanded social programs, and provided
better infrastructure and services than the citizens had previously
enjoyed. The population generally viewed these services and programs
as "gifts," generous offerings from the government as a result of
the bounty from oil. When oil prices dropped, oil revenues diminished
and foreign debt increased. In reaction to this crisis, the government
cut many programs and services. Venezuelans did not clamor to maintain
them because they had considered them gifts. Human rights activists
have begun to elaborate a framework for understanding these problems
and services from a rights perspective, and to popularize the idea
that the government has certain ESC rights obligations, which include
the development of policies and implementation of programs in the
social, economic and cultural spheres, which cannot be derogated
from despite the changed economic conditions.

Nigeria is also an
oil-rich country, but the population of approximately 100 million
reaps little benefit from oil revenue which is siphoned away to
enrich a few. The country is governed by a military dictatorship
characterized by outrageous corruption and severe political and
civil repression. Over the past several years, the majority of human
rights and legal aid organizations have focused on addressing the
abundant violations of civil and political rights: arbitrary detention,
torture, censoring of the press, and so on. At the same time, poverty
throughout the country is intensifying. Schools and universities
are often closed because professors are on strike to demand better
facilities. Large-scale, forced evictions of squatter communities
occur regularly in Lagos, Nigeria's largest city. Many rivers and
arable lands have become gravely polluted from the process of oil
extraction. Some human rights and community activists are beginning
to examine and expose these problems through the lens of human rights
and to expose the role and responsibility of the government in these
situations.

The Caribbean Initiative
on Equality and Non-Discrimination (the Initiative) had its origins
in Guyana in 1992. As a result of a democratic transition, sufficient
political space emerged to allow human rights activists to address
a broader range of issues than had been the case under previous
dictatorial conditions. Activists felt that maintenance of the human
rights movement's credibility in the region required an effective
response to poverty and adverse life conditions faced by communities
throughout the Caribbean. The Initiative has begun to use international
human rights standards in work with development organizations and
government agencies to help define and shape economic and social
policies.

The
Galilee Society, the Arab National Society for Health Research and
Services was founded in 1981 by a group of local Arab health professionals
to address numerous health and sanitation problems of Arabs in the
Galilee; its activities and membership have since expanded to cover
the Arab population within Israel. The Society initially sought
to complement the work of agencies emphasizing curative health services
in urban areas, often overlooking problems faced by rural Arab communities,
and to publicize health problems of Arabs to Israeli authorities.
The Society became increasingly aware of the discriminatory impact
of governmental health and sanitation policies and felt compelled
to protest them. Through collaboration with activists experienced
with international human rights law, the organization began to integrate
human rights standards into its work, and developed an advocacy
position within the health field, working for equal rights of the
Arab population. The Society now focuses on advocacy and community
empowerment. It provides emergency health services only in urgent
cases, avoiding direct service provision in those areas where the
government is legally responsible.

The
Rights Framework and Approach

Analyzing
societal issues and problems through a rights framework and using a
rights approach to tackle them are powerful means of advancing a vision
for a just world.

The Rights Framework

Individuals are the
holders of economic, social, political, civil and cultural rights.
Governments have corresponding obligations to respect, promote,
protect and fulfill these rights. The legal and normative standards
for the character of the rights and associated governmental obligations
are based on international covenants, treaties, conventions, declarations
and recom-mendations and in national constitutional provisions
for human rights.

The
Rights Approach

The
rights approach uses international human rights norms and treaties
to hold governments accountable for their obligations. The rights
approach can be integrated into any number of advocacy strategies
and tools, including monitoring, community education and mobilization,
litigation, legislative advocacy and policy formulation. Guiding
Principles of a Rights Approach to ESC Rights Activism

Guiding Principles of a Rights Approach
to ESC Rights Activism

Human
Rights are Interdependent and Indivisible

It is important
that ESC rights activists consistently affirm that all human rights
are interdependent and indivisible. It is critical that all human rights
be recognized as essential to human survival and dignity. Advocacy for
economic, social and cultural rights should not fall into its own trap
of perpetuating the dichotomy that was exacerbated by Cold War tensions.
Focusing on economic, social and cultural rights does not mean that
these rights are more important than, or independent from, civil and
political rights. They warrant specific focus because they have been
ignored for so long, and so little work has been done to elaborate and
popularize these rights as human rights.

ESC
Rights Apply to All Individuals on the Basis of Equality and Non-Discrimination

All human
rights work is grounded on the principle that each and every human right
belongs to each individual on the basis of equality and non-discrimination.
Although we may not yet be able to evaluate the full extent to which
people can exercise certain ESC rights or the precise level of government
compliance with its obligations, we can nonetheless identify areas where
groups have unequal access to specific government-provided economic
and social resources or services. In cases where that unequal access
is the result of discriminatory policies and practices, an ESC activist
may be able to base a rights claim on the principle of equality and
non-discrimination. (This is discussed further in Chapter 2: Content
of International Standards.)

ESC
Rights Denote Certain Governmental Obligations

As indicated
in the description of the Rights Framework, individuals are the holders
of human rights and governments have related obligations to respect,
promote, protect and fulfill human rights. The legal and normative standards
for the character of the rights and the associated governmental obligations
are based in international covenants, treaties, conventions, declarations
and recommendations and in related constitutional provisions. By ratifying
international human rights treaties, states agree to be accountable
to one another, as well as to their citizens, for the fulfillment of
their obligations. A central principle in using a human rights approach
to advocacy is the consistent assertion that states are accountable
for their obligations under international law and within national constitutional
frameworks.

There are
many non-state actors that affect human rights. These actors and issues
must be addressed if human rights are ever going to be universally respected,
though the extent to which international law does and should apply to
non-state actors is an unsettled question which needs to be more clearly
defined. Even while questions such as these are explored, however, there
is a great deal to be done to determine the content of specific rights
and hold governments accountable for their obligations.

ESC
Rights Are Justiciable

Closely linked
to the process of claiming a right is the issue of justiciability. Something
which is justiciable is "capable of being decided by legal principles
or by a court of justice." The question of whether ESC rights are justiciable
is one of the least clearly understood and most hotly debated issues
in the literature on ESC rights. Most courts around the world are reluctant
to make rulings on ESC rights. They generally defer to the policy makers
and politicians, hesitant to "step on the toes" of those they believe
to be the rightful decision-makers on these matters. They refuse to
explore the legal terrain of ESC rights in which there are few precedents.

This reluctance
or refusal is often cited as evidence that ESC rights are not justiciable;
that is, if courts will not take a case, it must mean that the issues
raised are not suitable for a legal ruling. However, workshop participants
concurred in the view that the failure of courts to rule on ESC rights
does not mean that the rights are not justiciable. ESC rights are justiciable;
that is, they are capable of being decided by courts or other quasi-judicial
fora using internationally-recognized legal principles and agreements.
The courts of countries which have ratified the International Covenant
on Economic, Social and Cultural Rights (ICESCR) could, for example,
use Article 2 of the Covenant which mandates progressive implementation
of measures -- including legislative measures -- to rule that the repeal
of a mandated program which has enabled the population to reach a certain
level of health or education is not permissible under the country's
international agreements. The question of justiciability is one of political
will and legal creativity. It was agreed by workshop participants that
activists should bear this in mind at all times and consistently affirm
that ESC rights are justiciable.

Ripple in
Still Water does not attempt to review or critique the many arguments
related to the justiciability of ESC rights. However Chapters 6 and
7 explore the issue of justiciability a bit further.

ESC
Rights Can and Should Be Claimed

Through ratification
of international treaties and by virtue of customary international law,
states have responsibilities to uphold and fulfill human rights. When
individuals cannot exercise what they understand and believe is their
right, activists and organizations can encourage and help them to claim
the right through judicial and administrative channels, or by other
means -- demonstrations, civil disobedience, etc. -- where an established
mechanism does not exist.

The Centre
for Equality Rights in Accommodation (CERA) in Canada has come to understand,

the ability
to claim the right is central to the concept and reality of economic
and social rights....The Canadian understanding of human rights is
that rights are things that can be claimed through some sort of judicial
or quasi-judicial process. It is, therefore, that process that the
anti-poverty groups focus on. 9

Guiding
Principles of a Rights Approach to ESC Rights Activism

Human
rights are interdependent and indivisible
rights:

ESC Rights:

apply to
all individuals on the basis of equality and non- discrimination

denote certain
governmental obligations

are justiciable

can and should
be claimed

The process
of staking a claim not only asserts an individual's ownership of his
or her entitlement, it also helps to define the content of the right
and raise awareness that what has been claimed is a right and not a
privilege. The process of claiming a right can alert the government
to its responsibilities and put pressure on the authorities to meet
their obligations.

Guidelines
for Activism

ESC rights
activism should be characterized by qualities common to all good human
rights activism and should be understood within and informed by the
historical development of the human rights movement. In particular,
activism should be:

Participation
in the conduct of public affairs is a human right.10
It has also been recognized by various intergovernmental organizations,
including the United Nations Development Program (UNDP), the World Health
Organization (WHO), and the World Bank, as a critical component of the
successful design, implementation and evaluation of social and economic
programs. In its Human Development Report 1991, UNDP writes:

An essential
part of any political process to benefit the poor is a high degree
of participation. Encouraging the autonomy of citizens is, indeed,
an end in itself. And participation is a means to ensure the efficient
provision and more equitable distribution of goods and services. If
people are involved in decision-making, policies and projects tend
to be more realistic, more pragmatic and more sustainable. 11

Such policy
statements acknowledge that participation is essential to the effectiveness
of programs geared towards the development of societies. Likewise, ESC
rights activism will be effective to the extent that it involves communities
and affected groups in identifying problems to address, setting goals,
priorities and strategies for doing so as well as implementing, evaluating
and modifying these activities. By involving the community in this fashion,
activists will serve as a more effective "microphone" for the community
in amplifying the needs, experience and vision expressed by or elicited
from it.

Impartiality
is a central principle to all human rights work. Human rights activists
with long experience caution that it is very easy for human rights organizations
to be drawn into taking politically partisan positions. The appropriate
role for a human rights activist is one of assessing policies and practices
of governments and political parties of all persuasions on an impartial
basis. This is as true for economic, social and cultural rights work
as it is for work on civil and political rights. Critical analyses of
economic and social policies and programs using a human rights approach
should avoid identifying specific policies as "pro" or "anti" human
rights in the absence of well- documented evidence of the impact of
a policy on the ESC rights of individuals.

For example,
recent international political consensus links the introduction of multi-party
political systems, respect for human rights, and free-market economies
under the general heading of "good governance," thereby implicitly linking
respect for human rights with a free-market economy. Conversely, some
critics of structural adjustment programs maintain that such policies
violate human rights. The linkage -- whether positive or negative --
of human rights to a single economic doctrine or policy will impede
the ability of human rights groups to impartially monitor and assess
the concrete impact of these policies on human beings. In other words,
human rights groups should not align themselves for or against specific
economic and social policies, but rather should take as their starting
point the human impact of any and all policies.

An attitude
of non-defensiveness is important in undertaking ESC rights
activism. Addressing ESC rights means challenging structures and interests
which govern resource allocation and perpetuate poverty. When demands
are made for redistribution of resources, many interests are threatened.
It is important that activists be aware of the implications of using
a rights approach, particularly in the current global political economy.
Efforts to utilize a rights framework to analyze and advocate for changes
in government policies or to regulate business practices may be attacked
as "anti-free market" or promoting "big government."

One of the
greatest obstacles activists face is the commonly held misconception
-- often promulgated for ideological reasons and in furtherance of economic
interests -- that economic, social and cultural rights fall into the
realm of needs, preferences or desires. Critics point to the broad,
relatively vague language related to ESC rights in the International
Bill of Human Rights, and argue that they could not be guaranteed rights
because it is not possible to know what they mean. These rights are
not understood as guarantees of certain qualities of life and access
to resources to which all people are entitled.

Activists
should stress the similarities of ESC rights work to civil and political
rights work as well as learn the history of the International Bill of
Human Rights and the elaboration of civil and political rights norms,
so that they feel comfortable in explaining why ESC guarantees embody
rights. When the Universal Declaration of Human Rights was adopted in
1948, the international community was not clear about what constituted
torture, or what differentiated torture from cruel, inhuman and degrading
treatment or punishment. However, because of the greater attention afforded
civil and political rights over the years, the specific content and
meaning of the right to be free from torture (as well as other civil
and political rights) have been clarified through extensive case studies,
debates, research and analysis. Acknowledgment that progress in developing
similarly elaborated understandings in economic, social and cultural
rights will likewise take a long time may help activists to be perseverant
and tenacious in this challenging work. (See box.)

Example:
FLAG's Perseverance and Tenacity

Under
its Economic, Social and Cultural Rights Program, the Free Legal
Assistance Group (FLAG) established four rights-specific task
forces on what it calls "the rights of survival", those rights
which are inextricably linked to the right to personal security:
the rights to housing, health, education, and food. Each task
force was directed to 1) identify the issues and problems within
the Philippine context which had to be addressed and reconciled
in relation to the right in question, 2) define the right and
the absolute minimum entitlements which spring from it, 3) identify
the state obligations for the right, and 4) develop indicators
for measuring the state's performance. FLAG planned for each task
force to complete its work within one year. In practice, however,
the process has been much slower. As of July 1996, the Task Force
on the Right to Housing, for instance, had already been working
for over a year and had achieved only a portion of what it intended.
During that year, it identified eleven issues/problems that must
be resolved to arrive at a definition of the right to housing
and of these eleven, it had agreed on the content of just two
issues: legal security of tenure and availability of basic service
resettlement sites.

Reflections
on the Housing Task Force's development led FLAG to alter the
time lines for work in order to preserve some of the processes
which have contributed to its success. For example, FLAG had invited
a diverse range of people to sit on the task force and tensions
inherent to such diversity quickly surfaced. FLAG is committed
to working with all groups regardless of political persuasion.
It believes that the different perspectives should be discussed
openly, and that "codes of conduct" should be developed by the
group to allow for such discussion, despite the amount of time
it takes to do so. FLAG also learned that most task force members
did not have a human rights perspective on housing issues. It
took time to inform them about the rights framework and to come
to some common understanding of what is meant by a "right." Though
time-consuming, the educational process is consistent with FLAG's
overall philosophy and approach to structural change.

Important to all human
rights work is effective collaboration and cooperation.
When the common goal is well-defined, working in coalitions on specific
campaigns, projects or long-term programs strengthens the impact of
an organization's work, expands its pool of resources and avenues
of influence, and broadens its perspective.12 Cooperation
and collaboration are particularly important to ESC rights activism
because a range of knowledge and expertise is needed to help groups
elaborate on the core concepts of most of the rights. Development
and other organizations have often worked more closely with affected
groups and victims of economic, social and cultural rights abuses
than have human rights groups and thus have very valuable information
and access. Drawing on the expertise of individuals and other groups
not associated with an organization can also deepen the latter's understanding
of the issues and problems involved. For example, a human rights group
initiating work in an area such as health care or economic development
can enhance its skills and capacity by involving health professionals
and others working in the field; they can, in the process, share human
rights concepts with these individuals and groups. Collaboration can
take place within local, national and international spheres. Local
and national human rights groups may also find that developing contacts
with international-level human rights organizations is very helpful.
Such contacts can broaden the resources available to the groups, bring
in valuable experience from other countries and assist in the process
of mobilizing international pressure.

Collaboration
between National and International Organizations

Oil
development in the Ecuadorian Amazon over the last three years
has caused massive environmental, social, and cultural harms,
much of it related to the dumping and spilling of toxic materials
into community water sources. Local indigenous, environmental
and settler groups have organized to press for enforcement of
environmental safeguards, remediation of past damages, and more
participatory and sustainable development practices. The groups
have sought support from NGOs and experts from outside of Ecuador
to enhance their scientific and legal position and to increase
the pressure on the oil industry, the development banks, and
government agencies. One such NGO, the New York-based Center
for Economic and Social Rights (CESR) works with local and international
advocates and scientists to facilitate North-South and inter-disciplinary
coalitions to address a broad range of issues involved in promoting
ESC rights. In 1993, CESR organized a fact- finding mission
of doctors and environmental scientists to measure the levels
of contamination and health impacts related to oil development
in certain Amazon communities. Based on the results of the scientific
study, CESR worked closely with the Ecuadorian groups to prepare
and release a report on violations of the right to health and
the right to a healthy environment. The report was used in an
international campaign to pressure the government and multinational
oil companies to reform existing practices and to create a more
transparent and participatory framework for further development
and protection of the Amazon. Following the report, CESR has
helped local groups do outreach and education among Amazon communities
regarding their rights in respect to industrial development.
The efforts of these local groups has led to the establishment
of a network of community advocates to oversee and report on
industrial activities and human rights violations, in coordination
with international NGOs like CESR.

9. Quoate from IHRIP interview with
Broce Porter of the Centre for Equality Rights Accommodation

10. Article 25.a of the Internaional
Covenant of Cinivl and Political Rights states: "Every citizen
shall have the right and opportunity, without any of hte distinctions
mentioned in article 2 and without reasonable restrictions: (a) To
take part in the conduct of public affairs, directly or through freely
chosen representatives. . ."